Tarbell, J.,
delivered the opinion of the court:
.According to the'deolaration, the Southern Express Company, on the 22d day of December, 1861, undertook, at the request of Heber Craft, to carry $100.00 in money from Holly Springs, in this State, to Bowling Green, Kentucky, and there to deliver the same to J. D. Duncan, for the sum of $1.50, which was paid by Craft. And, on the 4th day of January, 1862, undertook to crrry $65.00 to the same point, and to deliver to the same party, for the further consideration of $1.50, which was also paid by Craft. At both the above dates the cars were running regularly between the two points named, and continued so to run until the 14th day of February thereafter, a period of about forty days. On the last day named, Bowling Green was evacuated by the Confederates, and was that night oocupied by the Federáis. The money was never delivered to Duncan, who testified that he often called at the office of the company for the money, but that it was never received by him. Several months thereafter, the money, while in the care of an agent of the company, in Nashville, was seized at that place, by the Federal authorities.
To the action the company pleaded the general issue, with notice that the money sued for was seized by the Federal troops during the late war without the fault of the company.
On the trial, it appeared that Craft, being in Kentucky, [490]*490bought a horse of Duncan for $165.00, and was to remit the money, by express, on his return to Holly Springs. There was no specific agreement that delivery to the company was to be considered payment or d discharge of Craft. Both Craft and Duncan testified, that Craft paid the money to Duncan after the war, and then brought this suit against the-company. There was a- verdict for plaintiff, and hence a writ of error. Two propositions were earnestly pressed by the company, in the court below, as they are here, viz: 1. That the company used due diligence, but was prevented from performance by the public enemy. 2. That the action should have been brought in the name of Duncan.
As to the question of diligence, there is no evidence showing an interruption of communication by railroad between Holly Springs and Bowling Green after January 4, until February 14, 1862. These packages were delivered December 22,1861, $100.00', and January 4,1862, $65.00. And there is nothing shown why they should not have been forwarded and delivered within one week after their receipt at Holly Springs. We are well aware of the uncertainties of military operations, and the dangers incident to communication at such times. If, however, the verdict of the jury was not right, we see nothing in the record to justify its disturbance;
With reference to the proper party plaintiff, whether consignor or consignee, a critical examination of the authorities shows, that the right of action changes from the one to the other upon that which might, perhaps, be considered very nice distinctions. Under circumstances, the consignor, though without either a general or special interest in the property, may sue for damages in transitu, if no objection be made by the real owner. Blanchard v. Page, 8 Gray, 281. To illustrate: If by the bill of lading, the contract to transport and deliver is with the shipper, then he may sue for damages to the goods, if not objected to by the real owners, though he be a mere agent, and without interest general or special. (Ib.) If, however, the bill of lading states the contract to be with the consignee, then he should sue. (Ib.)
[491]*491In the authority referred to (8 Gray) the subject is very fully discussed, as it is also in Hooper v. C. and N. R. R. Co., 27 Wis., 81. In the latter case, it is said, the shipper of goods, who has contracted for their safe conveyance, may sue for injuries thereto in transportation, although the title of the goods has vested in the consignee. The court, in the course of a very able opinion, say: “ The fourth and last position taken is, that the plaintiff was not the owner of the flour at the, time of the loss, but that the title was in the consignees, who alone can maintain an action. In Blanchard v. Page, 8 Gray, 281, it was held, after a most elaborate examination, that the shipper named in a bill of lading may sue the carrier for an injury to the goods, although he has’, no property, general or special therein. This, it was held, might be done by force of the original contract for safe carriage, made by the carrier with him. Such right of action upon the contract is not affected by the provision of the Code, which requires every action to be brought in the name of the real party in interest. The shipper is a party in interest to the contract, and it does not lie with the carrier, who made the contract with him, to say, upon a breach of it, that he is not entitled to recover the damages unless it T>e shown that the consignee objects, for, without that, it will be presumed that the action was commenced and is prosecuted with the Itnowledge and consent of the consignee, and for his benefit. The consignor or shipper is, by operation of the rule, regarded as a trustee of an express trust, like a factor, or other mercantile agent, who contracts, in his own name, on behalf of his principal. Grinnell v. Schmidt, 2 Sandf. S. C., 706 ; Robbins v. Deverill, 20 Wis., 148. Such is the true relation of the consignor; for, by the bill of lading, it appears that he made the contract in his own name, for the benefit of his consignee.”
Joseph v. Knox, 3 Camp., 320, was an action by a shipper against a ship-owner, on a bill of lading, in which it was contended that the action would not lie, because the plaintiff did not appear to be the owner of the goods. Lord Ellen-[492]*492borough held, “that the action will lay on the privity of contract established between the parties, by means of the bill of lading. The plaintiff was the party from whom the consideration moved, and to whom the promise was made. After such a bill of lading, the ship-owner cannot say to the shippers they have no interest in the goods, and are not damnified by the breach of contract.”
The Lord Chancellor of England, in a recent case in the House of Lords, after reviewing the authorities, .announced the following as the doctrine agreed by the Lords to be declared in that case: “These authorities establish the proposition that, although, generally speaking, where there is a delivery to a carrier, to deliver to a consignee, he is the proper person to bring the action ; yet if the consignor made a special contract with the carrier, the special contract supersedes the necessity of showing the ownership in the goods, and the consignor, the person making the contract with the carrier, may maintain the action, though the goods may be the goods of the consignee.” Dureloss v. Lambert, 6 Cl. and Fin., 600.
The opinion in Blanchard v. Page, supra, was by Chief Justice Shaw, who, at great length, analyses the language, terms, conditions and purposes of a bill of lading, and reviews all the authorities in England and the United States. As in the case at bar, that was an action upon the contract to transport and deliver certain goods contained in the bill of lading. The contract was with the shipper, and the action was in his name, though he had neither a general or special property in the goods. The facts in that case were these : The goods were purchased in Boston, by Sutton, Griffiths & Co., of Fort Smith, Arkansas; the plaintiffs in the action were authorized and requested by Sutton, Griffiths & Co., to cause the goods to be shipped on board of a vessel for New Orleans, to a forwarding house there, named by them, A. Q. Gaines & Co., to be forwarded by them to the owners, at Fort Smith; and in the language of the court, ‘-‘the evi[493]*493dence shows conclusively that all the goods were the property of Sutton, Griffiths & Go., at the time of the shipment and of the alleged loss.” The court then say: u We therefore assume, for the purpose of discussing this question intelligently, that they were the sole owners of the goods during their transit; that neither Blanchard,' Converse & Go., the shippers, and present plaintiffs, had any interest in the goods, or in their safe carriage and delivery, except what arises from the bill of lading itself; nor had Gaines & Go., the consignees, at New Orleans, any interest in the goods, but only an authority from Sutton, Griffiths & Go:, to receive the goods as their agents at New Orleans, and forward the same to them at Fort Smith, a distant point in the interior, to pay the freight, and take suitable measures for so forwarding the goods.”
Of the bill of lading, besides an analysis of its language and terms, the court observe: The bill of lading does not contain express words importing promise, contract, or stipulation; but it contains words equivalent. It is an acknowledgment of the receipt of the goods, for the purpose of carriage, that they are received of A B, the shipper, and in the absence of any such words as, ‘ for account and risk of O D,’ or £ by order or for account of E F,’ the consignee, and in the absence of any terms describing the shipper as agent, or stating the property to be in another person, no presumption can arise in favor of any other party. It is an admission on the part of the ship-owner, that he has received the goods from the shipper, and that the possession came to him from the shipper; that he is the owner, or has the power of an owner, and has a right to direct the destination of the goods, and has good right to contract with the ship-owner for their safe carriage.”
In that case, the contract of shipment Was made by the plaintiffs, as the agents of Griffiths & Go., whose names were not mentioned, whereupon the court remark: “ The ques^ tion is not whether Griffiths & Go., as principals, might not maintain an action on a contract made for their account, by [494]*494their agent; but whether the plaintiffs, as the party actually making the contract, in the absence of any action brought by the principal, may not maintain the action.”
The conclusion in the case quoted from is this: “ It does not appear in the present case, that the owners of the goods have ever made any objection to the maintenance of this action by the plaintiffs. On the contrary, we understand that it was commenced and is prosecuted with their knowledge and consent, and for their benefit. And the court are of opinion that this action can be maintained by the plaintiffs, being the original shippers and consignors in the bill of lading, by force of the original contract for safe carriage, made by the defendants with them ; and it is not for the defendants to say that, upon a breach of that contract, the plaintiffs, with whom it was made, are not entitled to recover the damages, which are the direct and natural consequence of such breach of contract.”
By such a contract, the shipper, though without either a general or special interest in the property, agrees to pay the freight if the consignee does not, and he is upon this undertaking, responsible to, and may be sued, by the shipowners, for the freight. And, as shown, the shipper may have an action in his own name, for damages to the goods. In other words, the contract is reciprocal.
The counsel in the veiy interesting case of Blanchard v. Page, insisted, as do counsel in the case at bar, that delivery, to a carrier, whether evidenced by a bill of lading or not, vests the property in the consignee, who ought, therefore, except in the few special cases mentioned by him, to sue for any injury to the goods; that the bill of lading is first to be looked to as the medium of the intent of the parties; that in the ordinary form of the bill of lading, as in that case, (and in the case at bar,) the property prima facie vests in the consignee, and he alone is entitled to sue. The counsel conceded, however, thatif it appears by the bill of lading, or by extrinsic evidence, that the property described therein is shipped on account of the consignor, or at his risk, or if he [495]*495pays the freight thereon-, (as in the case at bar,) or makes a special contract for carriage, (as here,) then there is established a priority of contract between him and the carrier, and the contract of carriage is presumed to be with him and he may sue. And he cited : 1 Atk., 248 ; 1 Ld. Raym., 271; 8 T. R., 330; 3 Bos. v. Pul., 582; 2 Campb., 36; 4 B. & C., 219; 1 Johns., 215 ; 8 How., 439; 17 ib., 100; 6 East., 21; 5 Met., 306; Morton on Vendors, 416; 1 Walford on Parties, 31 et seq. It was further insisted, by the counsel, that the only excepted cases are these : (1.) When the shipper or can-signor pays the freight, or malees a special contract. 5 Bun., 2680; 1 T. R., 659 ; 3 Cowp., 320 ; 6 Cl. & Fin., 600. (2.) When the consignor or shipper retains the property in the goods. 3 B. & Ald., 277 ; 5 ib., 350; 1 M. & Rob., 233. (3.) When the consignor and consignee are both interested in the goods, as in the case of bailor and bailee. 1 Nev. & Man., 420.
In what respect the conclusions of the court differed from the views and concessions of learned counsel in that case, may be noted by a comparison of the quotations given above.
The result of the cases as stated in Abbott on Shipping, 337, is this: “ In the case of an express contract, evidenced by a bill of lading, the action may be brought by the shipper with whom the master contracted, or by the owner of the goods, whose agent the shipper was.”
Mr. Justice Bailey, in Sargent v. Morris, 3 B. & Ald., 277, says: Now I take the rule to be this- — if an agent acts for me and in my behalf, but in his own name, then, inasmuch, as he is the person with whom the contract is made, it is no answer to an action in his name to say that he is merely an agent; unless you can also show that he is prohibited from carrying on that action by the person on whose behalf the contract was made. In such cases, however, you may bring your action, either in the name of the party by whom the contract was made, or of the party for whom the contract was made.”
Abbott, Ch. J., drew the distinction between that case, which was for breach of the undertaking of the shipowner to [496]*496carry safely, and a case where the goods have vested in the. consignee, on which an action in another form might be brought; and he remarks; “A transfer of the property is however, very different from a trasfer of the contract.”
It is stated in 2 Red. Law Of Railw., p. 171, § 175, (8,) that, “actions against carriers may be brought in the name of bailees or agents, who have the rightful custody of the goods, and toho malte the bailment, or in the name of the owner.”
In support of the point made in behalf of the plaintiffs in error, that upon the delivery of the packages to the express company at Holly Springs, the title to the money vested in Duncan, and, therefore, that this suit should have been brought in his name. Reference is made to 1 Ch. Pl., 5, 6, 70 ; The Prances, 9 Cranch, 188 ; The Mary & Susan, 1 Wheat., 25 ; Grove v. Brien, 8 How., 429 ; 2 Kent., 499; Bonner v. Marsh. 10 S. & M., 376; and Shuts v. Wilgus, 56 Barb., 662,
As understood, these authorties' show; (1.) When the right of action vests in the consignor. (2.) When in the consignee. (3.) When in other parties. (4.) When title to the goods is involved and determines the right of action; and, (5.) The facts which transfer the right of action from one to the other, or rather, which vests the right.in the one or the other of several parties. The present action is believed to be in accordance with the views of Chitty, Kent, and Redfield. 1 Ch. Pl., 6, 7 ; 2 Kent, 11th ed., (1867,) Lecture 39, p. 499, 500; 2 Red. L. of R., 170-172, and Shuts v. Wilgus, 56 Barb., 662,
. The Frances, 9 Crunch, 188, was a petition for the rest!tuition of goods-captured during the war of 18L2, The question was, whether the title to the goods was in the English ■or American merchant, upon which depended the right to restitution. ;
The Mary arid Susan, 1 Wheat, 25, was precisely like the case of The Prances.
• Grove v. Brien, 8 How., 429 was a contest between a creditor of the consignor’arid the consignee. The title was [497]*497held to have vested in the consignee before the creditor interposed his claim.
Bonner v. Marsh, 10 S. & M., 376, like that of Grove v. Brien, was a contest between an attaching general creditor of a consignee of cotton, attached in transit, and the consignee also a creditor of the consignor. The court say of the case, that: “ The true and only question is the question of title. Was it the property of McRae when the attachment was levied, or of Bonner, etc. ? In other words, had there been a sale and delivery ? ” Held: There had not been a sale and delivery, and the attachment was sustained. Beyond this brief abstract, these cases need not be developed, as their bearing upon the question under discussion is too remote to influence the result.
Referring to the later and more direct authorities heretofore cited, it will be seen that this case is solved by its simple facts, and upon familiar principles. To explain and enforce this remark is the object of what follows, although to some extent, at the expense of a repetition of preceding portions of this opinion.
At the request of Craft, the express company contracted to transport and deliver the packages to Duncan, at Bowling Green, the freight being paid in advance by Graft. Duncan does net object to the suit in Graft’s name, for the best of reasons, to-wit: that he has been paid by Graft, and therefore has no claim on the company. The testimony of Duncan was taken in this cause, and he not only does not object to the action, but testifies that Graft has paid him. A judgment in this case is, therefore, doubly a bar to a suit by Duncan; not alone because, knowing of this action, he did not object to it, but because of his full indemnification by payment from Graft. The action in the name of Graft, and the result in the court below, are clearly in accordance with the highest authorities. But, even in the absence of the payment of Duncan by Graft, the former not objecting, this action would be sustained upon its intrinsic merits, without [498]*498the support of the recent and enlighted precedents referred to, as the result merits the justice.of the case.
It is true the payment of Duncan by Craft is a gratifying and contributory fact, but has no material influence in the determination of the cause. It serves this purpose, however, that it precludes all possibility of controversy between Craft and Duncan over the avails of the judgment, and renders more certain to the company that the judgment is a bar to further prosecution.
The action is brought upon the contract of the company with Craft, and is sustained expressly upon that basis. Hence, the question whether the money, when deposited with the company, became the property of Duncan, is not involved. If Craft had not already paid Duncan, the former would be presumed to be the agent or trustee of the latter and suing for his benefit, within the authorities cited.
Referring to other points made by counsel, it may be remarked that it is not deemed necessary to determine under what circumstánces the action might or ought to have been brought in the name of Duncan, nor, generally, when the consignee instead of the consignor is the rightful party in actions against carriers for injuries to goods; nor yet, when such actions must be brought by the legal owner, beyond the instances furnished by the authorities.
The single proposition intended to be asserted by this adjudication is so happily stated by one of the earliest cases of this character on record, it will be here quoted for that purpose. Reference is made to Davis v. Jones, 5 Beon., 2680, which was an action against a common carrier by land, and was decided oix the footing of an original contract. The case was before Lord Mansfield, who held that the defendants were liable for the consequences to the original consignors, whether the property was in them or not, because the carrier agreed with them to carry the goods safely, and the action was for the breach of that agreement. The doctrine announced in that case by Lord Mansfield is adopted and declared as the true rule in the case under consideration,
[499]*499In contrast with Davis v. Jones, is Dawes v. Peck., 8 T. R., 330, one of a class of cases where no bill of lading is usually given, and where the party in whom the legal interest is vested is the rightful party to an action against a carrier. Lord Kenyon stated that the owner of the goods is the proper party to an action against a carrier, because “ he is the person who has sustained the loss by the negligence of the carrier, and whoever has sustained the loss is the proper party to call for compensation from the person by whom he has been injured.” This case has served to mislead the profession in some instances, but it Was a case of carriage by stage, where it is usual to pay the price of carriage on booking the goods, at the wagon office, without taking a bill of lading. Dawes v. Peck, was decided only a few years later than Davis v. Jones, and as the one served to express the rule in the case at bar, the other is given as a most apt illustration of a case where the right of action against a carrier for injuries to goods devolves on the person having the legal interest therein.
The questions herein discussed being of first impression in this State, and of growing practical interest, it is believed the attention bestowed upon them will not prove without value. In addition to the authorities heretofore cited, the following have been consulted, and are appended for the convenience of future investigations; Green v. Clark, 13 Barb., 57 ; Sandford v. H. Railway, 11 Cush., 155; Arbuckle v. Thompson, 37 Penn. St., 170; Elkins v. B. and M. Railway, 19 N. A., 337; White v. Bascom, 28 Vt., 268 ; Wing v. N. Y. and E. Railway, 1 Hill., 235; Ill. Cent. Railway v. Cowles, 32 Ill., 110; Creery v. Holly, 14 Wend., 26; Covill V. Hill, 4 Denlo, 330 ; Merian v. Funck, ib., 110; Wolfe v. Myers, 3 Sandf., 7; Greenl. Ev., § 305; 3 B. and Ad., 523; 9 Yerg., 446; 1 Ld. Ram., 271; Alfridson v. Ladd., 12 Mass., 173; Stackpole v. Arnold, 11 ib., 29; Buffum v. Chadwick, 8 ib., 103; VanStaphorst v. Pearce, 4 ib., 263; Savage v. Rix, 9 N. H., 269 ; Story on Agency, §§ 155, 160, 396; Doe v. Thompson, 2 Forter, 217 ; 1 Am. Ld. Cas. (1st ed.), 460; [500]*500Clap v. Day, 2 Greenl., 307; Com. Bank v. French, 21 Pick., 486; 1 H. Bl., 81; Paley on Agency, c. 5; Addison on Cont., 782; Angell on Carriers, § 397; 10 Watts, 384; Abbott on Shipping, (7th ed.), 319 ; 3 Mod., 321; 8 T. R, 531; 11 Mass., 72; 1 B. and Ald., 575 ; 7 Cow., 670 ; 1 H. Bl., 359; Davis v. Jones, 5 Bur., 2680; 8 T. R., 330 ; 13 East., 399 ; 1 T. R, 659 ; 4 Ad. and El. N. R., 260; 1 Camp., 369 ; Thompson v. Dominy, 14 M. and W., 403; 17 Johns., 23; 6 Ald. and El., 486; 5 B. and Ad., 393 ; 12 Barb., 310, etc. Judgment affirmed.